Deborah Anne Fairall v Harold Brian Ravenscroft [1991] ACTSC 41 (9 July 1991)

SUPREME COURT OF THE ACT

DEBORAH ANNE FAIRALL v. HAROLD BRIAN RAVENSCROFT
S.C. No. 1561 of 1988
Damages

COURT

IN THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Master A. Hogan(1)

CATCHWORDS

Damages - Assessment - Personal injury - Motor vehicle accident - Moderate whiplash - Knee injury - Numerous operations - Chondromalacia - Patellectomy - No issue of principle.

HEARING

CANBERRA
9:7:1991

Counsel for the Plaintiff: Mr G. Stretton

Instructing solicitors: Messrs Snedden Hall and Gallop

Counsel for the Defendant: Mr P. Crittle

Instructing solicitors: Messrs Crossin Power Haslem

ORDER

1. There be judgment for the plaintiff in the sum of $97,583.56.

DECISION

This is the assessment of damages for personal injury sustained by the plaintiff in a motor vehicle accident on 1 June 1984.

2. The plaintiff was born on 3 October 1966. In May 1984 she had obtained employment as a telephonist at the Kingston Library, employed by the then Department of Territories. It was work she enjoyed. She was active and healthy and, in particular, had not had any previous trouble with her knees.

3. On 1 June 1984 she was driving home from work. She was wearing a seat belt. Another vehicle failed to obey a give-way sign and the front of her car collided heavily with the left side of the other vehicle.

4. She was thrown forward, hitting her mouth on the steering wheel and her left knee on the dashboard. She did not lose consciousness. She had difficulty in breathing and felt pain in the sternum. She needed help to get out of her car, was unable to walk immediately because of pain in her leg and she sat on the side of the car till she was taken by ambulance to Woden Valley Hospital. On the way she complained of pain in the neck and the ambulance officers fitted a soft collar.

5. At the hospital she complained of pain in the neck, left knee and sternum. On examination, all movements of the neck were limited and she was tender in the soft tissues on the right side of the neck. Soft tissue injury to the neck was diagnosed and she was given pain killers and a soft collar.

6. There was tenderness over the medial edge of the left patella and reduced range of movement of the left knee. X-ray at the hospital did not reveal any fracture. She was treated with a crepe bandage and ice and given crutches.

7. X-ray of the sternum did not reveal any fracture and this also was treated as a soft tissue injury.

8. She was sent home after about five hours in casualty.

9. She suffered a very uncomfortable night and rested, in pain, over the following weekend.

10. In her evidence she stated that she was unable to go to work on the Monday and that on the Tuesday after the accident she consulted Dr Szmerler, her general practitioner.

11. However, the hospital records indicate that she returned there on 12 June 1984 complaining of pain in the upper thoracic area, limited neck movement and limited range of movement of the three. She was again prescribed pain killers and cervical collar and this time was also sent to physiotherapy.

12. Dr Szmerler's certificate states that she attended his surgery on 14 June 1984. The x-ray of the left knee that he obtained revealed an undisplaced and incomplete fracture of the medial tibial plateau. He referred her for assessment and treatment to Dr Stubbs, orthopaedic surgeon.

13. She first saw Dr Stubbs about three weeks after the accident. The principal injury was the left knee. The other injuries were in the process of getting better. Dr Stubbs reviewed her progress through July, August and September. He thought that the knee improved considerably but there was still complaint of tenderness and weakness of the quadriceps muscle. She was also getting pain in the right knee. He prescribed physiotherapy for the muscle wasting.

14. The plaintiff, however, felt that Dr Stubbs was not helping her enough and she asked Dr Szmerler to send her to another specialist. He referred her to Dr Calder who saw her in May 1985.

15. Meanwhile, she had attempted to go back to work about a week after the accident still on crutches and wearing the neck brace, but she lasted only about an hour.

16. She wore the neck brace constantly for about six weeks and then occasionally, if she felt that she was getting headaches from her neck.

17. She was on probation at the job with the library and did not obtain an appointment to the position when she was unable to return to work.

18. In October 1984, she was well enough to go back to work and obtained a job as a telephonist with Telecom.

19. When she saw Dr Calder in May 1985, she was complaining that her knee jammed on occasions, tended to give way and was painful. He suspected traumatic chondromalacia and arranged for an arthroscopy, which he performed on 2 July 1985.

20. The operation required a general anaesthetic and entailed a day in hospital. She was on crutches at home for a week or more and was off work for about three months.

21. Dr Calder found evidence of traumatic chondromalacia and performed a subcutaneous lateral release. He commented that her post operative progress was slow.

22. When he reviewed her in September 1985, she was still complaining also of neck pain and headaches, with intermittent numbness in the fingers of the right hand and an occasional ache in her shoulder. On examination, she had about 50% of the normal range of movement and tenderness over the C3/4 area. He prescribed exercises for the neck.

23. On 24 October 1985, the right hand numbness and the shoulder pain had gone. The neck ache was present, though improving. She had still not recovered full knee flexion. In December, her pain in the knee had diminished but there was still weakness. In January 1986 the plaintiff returned to see Dr Calder as a semi urgent case, with persistent pain and aching in the knee and complaining that it gave way frequently. He arranged a further arthroscopy which he performed in March 1986. She underwent again the general anaesthetic, the post operative pain and about three months off work. She felt the pain was worse and the knee more unstable than it had been before. Dr Calder had not seen any but minor changes on the arthroscopy and thought her symptoms were not consistent with the pathology that he could see. He told her he could not help her any further in April 1986.

24. She was then referred to Dr Peter Morris, who saw her first on 13 October 1986. By then, she told him, the knee had improved considerably. She suffered only occasional headaches, her neck no longer caused her concern and the injury to the sternum had completely resolved. Dr Morris then thought that she was still recovering slowly from her traumatic chondromalacia patellae, and that further surgery was not warranted. He expected the pain in the knee, however, to persist and to limit her sporting activities.

25. But when he reviewed her in April 1987 she was complaining that there had been no improvement over the previous nine months. On examination, there was continuing tenderness and he noted wasting in the thigh muscle. He began to think that surgery might be needed.

26. On 10 October 1987, she married.

27. Dr Morris saw her again on 27 October 1987. She was still having severe ongoing knee pain and he recommended the operation of Maquet tibial osteotomy, which he performed at Woden Valley Hospital on 24 November 1987.

28. The operation involved inserting screws in the tibia. It required a general anaesthetic and five days recovery in hospital. She needed pethidine for control of her pain. When she went home she was on crutches again, which she used for about two weeks. The leg was splinted for about six weeks. She resumed work at the end of February 1988.

29. She had difficulty in rehabilitating the knee because of continuing pain. Dr Morris reviewed her in January, February, April, June, September and December during 1988.

30. In an attempt to settle the pain down, he removed the screws in December 1988. Again, she needed general anaesthetic and time off work to recover from the operation. Dr Morris thought that her pain had been so extreme over the previous three or four years, without real improvement or relief from conservative or operative treatment that she would need a further operation, this time patellectomy. This he performed under general anaesthetic at John James Hospital on 31 January 1989.

31. On operation, he observed considerable inflammation in the retropatellar area, but the remainder of the knee looked normal.

32. By 15 March 1989 a lot of the pain had abated but she had a decreased range of movement and was attending physiotherapy. The limitation of movement continued and on 21 April 1989 she underwent manipulation to free adhesions. That required another day in hospital and general anaesthetic.

33. Physiotherapy continued and in August 1989 Dr Morris removed part of the fat pad, again under general anaesthetic. He expected continuing improvement but did not expect the knee to be sufficiently stable for another six to twelve months to enable him to give a final prognosis.

34. Dr Morris' opinion in January 1990 was that there had been progressive articular degeneration within the knee over the years. She was then three months pregnant and the extra weight, he thought, could well exacerbate the knee condition.

35. She ceased work in June 1990 because of the pregnancy.

36. Dr Colin Andrews saw her for the defendant on 20 September 1990. He noted mild restriction of neck movement, though she agreed that the neck pain and headaches had virtually resolved.

37. He observed the operation scars to the knee. There was laxity of the lateral ligament and some muscle wasting. She complained of a constant ache, difficulty in negotiating stairs, or in kneeling and inability to run. He felt that the level of disability, which did cause mild to moderate restriction, was greater than the organic condition would tend to indicate. I am not persuaded by that opinion to discount the plaintiff's evidence of continuing pain, especially in the light of the description of the joint given by Dr Morris in his report of 23 February 1990.

38. She now gets occasional pain in the knee after any substantial exercise. She has the scars and deformation of the knee. She is restricted in her activities with her child and unable to engage in any sport that involves mobility.

39. She is no longer undergoing physiotherapy. I am not persuaded that she requires medication to the extent that she claimed in the light of her description of the extent to which she gets pain in the knee. That degree of discomfort I would expect to continue indefinitely but the greater part of her claim covers the long course of treatment up to 1990 and the numerous operations, all requiring general anaesthetic, and all involving long periods of painful recovery.

40. She also had a relatively moderate whiplash injury which took over a year to subside completely and the painful trauma to the sternum.

41. For her pain and suffering I award the sum of $55,000.00, of which only $5,000.00 relates to the future. On my understanding of the law, it is appropriate in this jurisdiction to allow interest on the whole of the past component of that sum from the date of the accident until judgment at a rate of 4%. I do not agree with the submission that I should halve that rate. I therefore award $14,200.00 for interest.

42. I am not persuaded that her costs of future medication will amount to the sum of $260.00 a year that was based in argument upon her evidence but it is reasonable to expect that there will be some expense on that account for which I allow the sum of $2,000.00.

43. The out-of-pocket expenses are agreed at $9,084.75 and the total loss of wages, including the Fox v Wood component, is $17,298.81.

44. The total award is therefore made up as follows:-
Pain and suffering $55,000.00

Interest 14,200.00
Future medical expenses 2,000.00
Out-of-pocket expenses 9,084.75
Loss of income 17,298.81
Total $97,583.56

I direct the entry of judgment for the plaintiff in the sum of $97,583.56.